New Law Highlights

As we usher in 2022, we are once again simultaneously ushering in a broad slate of new laws in California that will bring significant change and reform to the criminal justice system. Some of these will probably warrant their own posts at some point, but for now, I am just going to highlight and summarize some of the most major changes happening.

  • Aggravated sentences:

SB 567 requires that any factor a court relies on to impose an aggravated sentence (also known as “upper term”) must be proved beyond a reasonable doubt to a jury. Moreover, the trial on such aggravating factors must be bifurcated, or separated, from the trial on the primary charges.

I predict most prosecutors will rarely go to this trouble and we will generally see “mid-term” being imposed after trial, which will also impact pre-trial offers (as a defendant’s potential exposure after the trial is now likely to be lower).

The bill also requires selection of the lower term in most cases where mitigating “contributing factors” are found such as childhood trauma, the defendant was a youth (under 26) at the time of the crime, etc…

  • Gang law reform:

    AB 333 drastically reforms the prosecution of gang crimes. Among the changes, any trial on gang charges must be bifurcated, or separated, from non-gang charges. What this means is that, upon defense request, a trial would first be held on the non-gang related charges before a separate trial on the gang charges. This is a really significant and important change as cops and prosecutors often seek to shore up weak cases by including gang charges, which often have the effect of prejudicing jurors against a defendant.

    The bill also changes the way in which the government is required to prove gang enhancements. Most importantly, when the government alleges a crime was committed “for the benefit” of a criminal street gang, they must prove that the benefit is more than reputational. This will, in theory, prevent gang cops from testifying that essentially any crime committed by a gang member is committed for the benefit of the gang by engaging in the circular logic that crimes committed by members necessarily benefit the gang’s reputation (which then leads to any crime committed by a gang member being committed for the benefit of the gang, a ridiculous and overbroad concept).
  • Clarification around prior reform of felony /natural and probable consequence murder:

    SB 775, most importantly, expands the resentencing relief available to people convicted of murder under a felony murder or natural and probable consequence theory to those convicted of attempted murder.

    The bill also clarifies what evidence is admissible at the hearing on resentencing as well as the standard of proof.
  • Sentencing reform:

    SB 81 gives courts much greater latitude to dismiss enhancements in the interest of justice. The law appears to even require such dismissal in some circumstances, instructing courts to afford great weight to evidence of mitigating circumstances and dismiss enhancements unless it finds that doing so would endanger public safety.

    Absent a finding that dismissal would endanger public safety, circumstances in which a court is required to dismiss enhancements include: when multiple enhancements are charged; when an enhancement would result in a sentence of over 20 years; when the enhancement is based on a prior over five years old; when the offense is connected to a defendant’s mental illness, childhood trauma or prior victimization.

AB 124 now requires prosecutors to consider the childhood trauma of a defendant during plea negotiations.

  • Release from custody on probation violations:

Previously, when someone was charged with a probation violation, most courts would not set bail. AB 1228 now requires courts to consider release for probation, parole, and AB109 violations and, in fact, requires release on one’s own recognizance unless the court finds by clear and convincing evidence that circumstances particular to the defendant require incarceration or the setting of bail. These factors can include protection of the public or assuring future appearances of the defendant.t

Jury selection reform:

Getting rid of a juror during jury selection on the basis of race, gender, sexual orientation, ethnicity, or religious affiliation is not allowed, but AB 3070 now puts some real teeth into the prohibition. When one side challenges the other’s removal or a juror on the grounds that the other side based the removal on an improper ground, the court must hear the justification for the removal. Previously, the court was only required to take action if it found that the removal of the juror was actually based on an improper reason. Now, it must take action if it finds that an objectively reasonable person would view one of the above protected classes as being a factor in the removal of a juror. In other words, the judge no longer has to call the prosecutor a racist, but only find that someone could see it that way.